Moratorium changed following lawsuit threat 

HURON COUNTY – Acting to avoid a threatened lawsuit, commissioners reached an agreement with Geronimo Huron Wind representatives Tuesday to revise the wind development moratorium to exclude two developers.

In exchange for revising the moratorium, Geronimo agreed to revise its site plan to relocate turbines that were to be placed within three miles of the shoreline, which was a point of contention with commissioners, and promised not to sue the county for violating its right to due process county as long as its revised site plan is approved by the planning commission.

The agreement would require Geronimo to relocate approximately a dozen planned turbines.

After revising the moratorium language, commissioners voted unanimously to adopt it.

The change impacts the moratorium commissioners approved April 2 after two public hearings. During that meeting, commissioners followed recommendation of Corporation Counsel Steve Allen to alter the wording of the moratorium so that no developer would be excluded. The notices for the hearings stated the moratorium would exclude “two applicants who have site plan review applications pending before the Planning Commission on or before Feb. 10.” Those applicants were RES Americas and Geronimo.

In a letter to Allen dated April 10, Geronimo attorney Matthew D. Zimmerman noted the company’s right to due process had been denied because the county failed to publicize its intentions to strike the exclusionary wording from the moratorium.

“Geronimo was deprived of its rights to fully comment on a Moratorium Amendment that did not contain an exclusion for Apple Blossom. Thus Geronimo has claims for injunctive relief and monetary damages against the County for this violation,” Zimmerman wrote.

He added that delays in construction and the operation of the Apple Blossom Wind Farm could result in monetary damages to Geronimo, for which the company could sue the county to recover under Michigan law.

“As Geronimo has in excess of $10 million invested in Apple Blossom, it would be difficult to imagine Geronimo not pursuing such claims against the County, particularly if the delay results in a termination of the project,” Zimmerman wrote, adding that the project could be terminated if the delay results in a breach of Geronimo’s power purchase agreement.

On Tuesday, Allen told commissioners that he agrees the county violated Geronimo’s right to due process, and he advised the board to hold another vote regarding the moratorium, this time keeping the language that excludes RES and Geronimo.

“That would put Geronimo and RES back in the position that they were expecting that they would have prior to that public hearing that we had April 2,” Allen said.

Commissioner Dave Peruski voiced concerns that Geronimo predicated their commitment to not sue the county with requirement the planning commission approve the revised site plan for Apple Blossom.

Zimmerman responded that the company has no other choice because it must protect itself in case the project is nixed by the planning commission.

“If we tell you we will pull them outside of three miles, even though right now we have the right to put them inside three miles, and the planning commission won’t let us take them and put them outside three miles, then there aren’t enough turbines to make the deal work. Then we don’t have a project. We can’t put ourselves in the position of giving up (the ability to recover damages) before we have the rights to the other secured,” Zimmerman said.

David Shiflett, Geronimo Wind Energy project manager-east region, said the company will attempt to bring the revised site plan to the planning commission at its next regular meeting, May 6.

“This requires an immense amount of reengineering to do this work,” Shiflett said.

The commissioners must also review the site plan, but Chairman John Nugent said the board will call a special meeting if necessary.

The representative for a third developer that had also indicated its desire to be excluded from the moratorium repeated the company’s request during the meeting’s public comment period.

“I’m just raising my hand and saying, me too, in the issue of fairness,” said Xio Cordoba, project manager for Heritage Sustainable Energy, of the Big Turtle Wind Park.

Nugent said that although the moratorium will prevent development for Big Turtle, it will likely end soon, as the Wind Energy Zoning Committee is nearly finished revising the ordinance.

Also during Tuesday’s meeting, commissioners:

• Moved to conditionally approve the decommissioning documents for the Deerfield Wind Energy project pending the County’s positive review of financial documents.

• Approved the issuance of refunding bonds by the Economic Development Corporation as requested by Scheurer Hospital.

• Proclaimed April 2015 as Parkinson’s Disease Awareness Month.

• Paid bills in the amount of $2,238,804.